Recently in Dos Santos v. Coleta, the Supreme Judicial Court of Massachusetts further defined the role of the “open and obvious” rule in premises liability cases. Under the “open and obvious” rule, the defendant in a negligence case is relieved of their duty of care if the hazard is open and obvious. However, a property owner should not be relieved from liability by an open and obvious danger where the plaintiff’s negligent act can and should have been “anticipated” by the landowner.

Superior Court Case: Jury Instruction Request Denied
Dos Santos, the plaintiff in the case, was injured while diving from a trampoline into a three foot swimming pool on the defendant’s property. Coleta, the property owner and defendant, placed a trampoline adjacent to an inflatable vinyl swimming pool that was only three feet deep. Coleta then placed a ladder inside the swimming pool allowing someone to climb from the pool to the trampoline. Coleta left the trampoline and swimming pool in this condition throughout the summer of 2005. He knew that jumping from trampoline into the swimming pool might be dangerous but set it up for “fun.”

Dos Santos and his family were renting a unit of Coleta’s home. During the summer of 2005, members of both families frequently jumped from the trampoline into the pool. In August of 2005, Dos Santos, while showing off, decided to try a forward flip into the pool. The plaintiff ended up landing on his head and fracturing his vertebrae, which permanently paralyzed him from the chest down.

The Superior Court judge instructed the jury to determine whether the hazard of the activity was open and obvious to a person of average intelligence. The plaintiff requested adding the exception to the open and obvious rule where the plaintiff’s negligent act can and should have been “anticipated” by the landowner. The trial judge refused, and the plaintiff appealed.

Appeals Court: Open and Obvious Rule
The appeals court citing O’Sullivan v. Shaw, held that diving into a small pool would be an open and obvious hazard since a reasonable person of average intelligence would not proceed, knowing the benefits did not outweigh the risks. The plaintiff in the O’Sullivan case dove head first into the known shallow end of swimming pool, causing injuries to his neck and back. The Supreme Judicial Court of Massachusetts ruled in that case that diving into the shallow end of a swimming pool was an “open and obvious” danger. The appeals court held that Coleta could not have anticipated Dos Santos would determine the benefits of the flip outweighed the risks.

Supreme Judicial Court of Massachusetts: Flip was Anticipated
The Supreme Judicial Court of Massachusetts disagreed with both lower courts because they effectively established a per se rule for shallow diving cases. An anticipation analysis should include more than a balancing of benefits and risks. The court distinguished O’Sullivan in that the question in that case was whether the defendant could be held liable for failure to warn, which makes sense since an open and obvious hazard is a warning in and of itself. Furthermore, there is no duty of care to fix the shallow end of a pool.

Coleta, on the other hand, breached a duty of care by setting up the trampoline, ladder, and pool with the specific intent of enabling people to dive, which resulted in the plaintiff’s injury. The court noted, contrasting O’Sullivan, that Coleta’s actions were equivalent to installing a diving board in the shallow end of a pool. The question should be whether Coleta should have anticipated Dos Santos diving flip.

The court remanded the case back to the trial court with directions to instruct the jury in a manner consistent with their opinion.

The court’s decision requires that landowners take greater care in remedying dangerous conditions on their property even if it is an “open and obvious” danger. The open and obvious rule does not allow a property owner to create or ignore an unreasonably unsafe condition simply because the unsafe condition is open and obvious.

Premises liability cases resulting in injury can be emotionally and financially difficult. These cases can be complex, and you are encouraged to contact a local personal injury attorney that understands the law and can review the elements of your case.

If you have suffered from injury on another’s property, we can ensure that you do not settle for less than the compensation you deserve. Local attorney, John C. Manoog III, has extensive experience handling premises liability cases. For a free initial consultation, call the office at 888-262-6664 or reach us by email. There is always someone available to talk to you about your case.